Proving the “Prior Action” Requirement of a Malicious Prosecution Case

When a party prevails in a legal proceeding, he or she sometimes will seek further vindication by way of a malicious prosecution action.  However, no matter how frivolous the prior action was, not all legal proceedings are recognized by California courts as triggering malicious prosecution liability.  In California, the filing of a frivolous garden variety civil action for breach of contract or a tort can support a later claim for malicious prosecution.  In addition, the following types of legal proceedings are recognized as “prior actions” which will support a later claim for malicious prosecution:

Why Appellate Briefing Rules Matter

This post is the third in an ongoing series about maximizing a party’s chances of prevailing on appeal.  California appellate courts impose specific requirements on how arguments are to be presented on appeal.  A party cannot simply incorporate by reference trial arguments.  Nor can a party simply cut and paste arguments made in trial briefs without the relevant discussion of the standard of review and citations to the record.  Parties who proceed with an appeal without following appellate briefing rules run the risk of, at best, having an argument deemed forfeited on appeal, and at worst, being removed from a case and referred to the state bar.  Consider the unfortunate outcomes following four California cases:

Potential Defendants in a Malicious Prosecution Case

Malicious prosecution actions in California are complex.  Filing and defending such actions require the handling attorney to have a deep understanding of  the interplay of anti-SLAPP law, SLAPP-back actions and malicious prosecution actions.  One of the preliminary issues to resolve in preparing a malicious prosecution action is who to name as a defendant.  In most cases, the defendants are not usually hard to identify: 1) the prior plaintiff(s); and 2) the lawyer(s) for the prior plaintiff(s).  However, in some instances this question is not so clear as to which parties to name as defendants in a malicious prosecution case.  For example,

• Liability is not limited to the prior plaintiff and attorney for the prior plaintiff.  Persons who urge, procure or otherwise are actively instrumental in the filing of the lawsuit may be sued for malicious prosecution along with the actual prior plaintiff.  (Ludwig v. Superior Court (1995) 37 Cal.App.4th 8, 25 fn. 26).
• Even if initial counsel had probable cause to file a lawsuit, successor counsel may be liable for malicious prosecution if they continued the prosecution without probable cause.  (Zamos v. Stroud (2004) 32 Cal. 4th 958, 970).
• A trustee may be sued for a prior action brought in trustee’s representative capacity.  The trustee, not the trust, is the real party in interest with respect to litigation over trust property.  (Nicholson v. Fazeli (2003) 113 Cal.App.4th 1091, 1102-1103).
• Associate counsel who appears on the pleadings and is on the case service list may not avoid malicious prosecution liability by claiming ignorance about allegations made by lead counsel.  (Cole v. Patricia A. Meyer & Associates, APC (2012) 206 Cal.App.4th 1095, 1117).

This post is the fifth in an ongoing series of posts on the tort of malicious prosecution.  Jeffrey Lewis represented the prevailing parties in the malicious prosecution case of Videotape Plus, Inc. v. Lyons (2001) 89 Cal.App.4th 156.   Jeffrey Lewis and the other attorneys at Broedlow Lewis LLP are experienced litigators and can advise you about your potential rights and defenses in a malicious prosecution action.  Each case is different and you should consult a lawyer rather than relying on this post as legal advice for your situation.

The Perils of In-House Counsel Simultaneously Representing Company and Employee

In Yanez v. Plummer (Nov. 5, 2013, C07026), the Third Appellate District issued an opinion highlighting the perils for an in-house lawyer who simultaneously represents the company and an employee.  Union Pacific fired Michael Yanez for dishonesty, citing a discrepancy between a statement that Yanez wrote and a deposition answer Yanez gave in a lawsuit concerning a co-employee’s on the job injury.  At that deposition, Union Pacific in-house counsel, Brian Plummer, represented both Union Pacific and Yanez.  Yanez met with Plummer prior to the deposition.  During this preparation session, Yanez told Plummer he was worried about how his testimony might hurt Union Pacific and may affect Yanez’ job.  Yanez asked Plummer who would protect Yanez at deposition.  Plummer indicated that he would be Yanez’ attorney at deposition.  Yanez’ conflicting deposition testimony led to Yanez’ termination by Union Pacific.  In the ensuing lawsuit, Yanez alleged malpractice, fraud and breach of fiduciary duty against Plummer.  Plummer successfully argued on a motion for summary judgment that Yanez could not establish the causation element of the claims against Plummer.

Judge’s order to take down law firm webpages is unlawful prior restraint

A lawyer’s website contained pages describing past successful litigation against Ford.  When that lawyer was in trial on a similar claim against Ford, the trial judge ordered the lawyer to remove the website pages during the pendency of the trial so that jurors were not exposed to it.  On appeal, two years after the trial was over and the website was restored, the order was found to be an unlawful prior restraint.  On Wednesday,  Division Six of the Second District Court of Appeal issued the opinion by Justice Steven Z. Perren in Steiner v. Superior Court (Cal. Ct. App., Oct. 30, 2013, 2D CIV. B235347) 2013 WL 5819545.  The decision was significant in three respects:

First, it recognized an important limitation on the trial court’s power to curtail an attorney’s free speech rights.  The trial court had correctly instructed the jurors not to “Google” the attorneys or conduct independent research.  Jurors are presumed to follow such admonitions.  (Steiner v. Superior Court, at 14; citing NBC Subsidiary (KNBC-TV), Inc. v. Superior Court (1999) 20 Cal.4th 1178, 1221).  Absent proof that any juror actually violated the court’s admonition, the trial court had no authority to order the trial attorney to take down web pages as a prophylactic measure.

Second, it was a rare example of a Court of Appeal issuing an order “after the fact” when the issue had already become moot.  The trial ended in October 2011 and the attorney restored her webpages.  The opinion in Steiner did not issue until two years later.  Generally, California Courts of Appeal do not issue opinions where the issues are moot and the court has no power to grant any meaningful relief.  However, here, the Court of Appeal found that orders such as these raise issues of “broad public interest” that are likely in the future to “evade timely review.”  (Steiner, at 5; citing Nebraska Press Assn. v. Stuart (1976) 427 U.S. 539, 546-547).  On this basis, the Court issued the opinion and overruled the objection of mootness.

Third, it is a cautionary tale for appellate counsel not to mislead justices.  One of the appellate petitions overstated the breadth of the trial court’s order stating that the entire website of the lawyer had been ordered removed pending trial (as opposed to just two pages that were actually ordered removed).  In the Steiner opinion, the Court of Appeal observed regarding appellate counsel Sharon J. Arkin:

It appears she is in violation of Business and Professions Code section 6068, subdivision (d), which states that it is the duty of an attorney “[t]o employ, for the purpose of maintaining the causes confided to him or her those means only as are consistent with truth, and never to seek to mislead the judge or any judicial officer by an artifice or false statement of fact or law.

(Steiner, at 4 fn. 3)

Appellate attorneys who stretch the truth in their briefs risk not only prejudicing their client’s interests but also receiving a sometimes publicized rebuke.  Even though this particular attorney was victorious on appeal for her client, the footnote in a published decision is a steep price to pay for zealous advocacy.  A Los Angeles legal affairs newspaper was unable to reach Sharon Arkin for comment.

Malpractice Claim Against DLA Piper Reversed

In Wise v. DLA Piper LLP (D062150, D062661 Oct. 8, 2013), the Fourth Appellate District, Division One reversed a malpractice judgment following a jury verdict against the law firm DLA Piper LLP.  Justice Alex C. McDonald wrote the court’s opinion.

DLA Piper’s predecessor in interest represented Dennis and Joan Wise in obtaining a judgment against William Cheng in 1994.  DLA Piper did not advise the Wises of the need to renew the judgment every ten years to avoid expiration.  The judgment expired in 2004 and the Wises sued DLA Piper for legal malpractice.   In the ensuing trial and again on appeal the critical issue was the collectibility of the judgment.  DLA Piper argued that if Chen was insolvent, legal malpractice could not be established.  The Wises retained a collections attorney to testify as an expert witness on collectibility.  The expert testified that Cheng could have satisfied a judgment.

Although the facts of the case were unremarkable.  The decision is notable for three reasons.

First, it reaffirms that in proving a malpractice case premised on the mishandling of a client’s claim, the plaintiff must prove that proper handling of the claim would have actually resulted in a collection against the debtor.  Put differently, if the

Photographers’ Rights in California

What rights does a photographer have to take a photo and what limits may law enforcement or the courts impose on those rights?  The courts in California have not clearly defined these rights.  However, some guidance can be obtained from how parties have litigated these claims.  Consider the following three scenarios:

• An artist stands on his property and takes a photograph through your uncovered window of your family for use in an art exhibition;
• A photojournalist snaps photos at a subway station arousing the suspicions of law enforcement; and
• A civil rights group wants to record video and audio of police officers making arrests in public.

These situations involve the intersection of privacy rights, First Amendment rights and, sometimes, national security concerns.  Generally, the law favors a photographer’s First Amendment rights over a person’s right to privacy.

Foster v. Svenson, New York Supreme Court
Tribeca artist Arne Svenson surreptitiously took photographs of his neighbors using a telephoto lens to see into his neighbors’ homes.  The photographed subjects included children.

3 Reasons a Trial Lawyer Should Retain an Appellate Specialist as Co-Counsel

(Photo credit: Wikipedia)

This post is the second in an ongoing series about maximizing a party’s chances of prevailing on appeal.  The trial is over, the verdict is in and the loser wants to appeal.  Should the same lawyers who handled the trial also handle the appeal themselves or retain an appellate specialist as co-counsel?  Consider the following benefits to retaining an appellate specialist:

1.  For appellants, the trial lawyer’s arguments obviously were not persuasive at the trial level.  Simply repeating the same arguments on appeal is not likely to succeed.  Moreover, following the intense experience of going through trial, a second opinion may be warranted.  As observed by Justice Kenneth R. Yegan in Estate of Kilkison (1998) 65 Cal.App.4th 1443:

[T]rial attorneys who prosecute their own appeals…may have ‘tunnel vision.’ Having tried the case themselves, they become convinced of the merits of their cause. They may lose objectivity and would be well served by consulting and taking the advice of disinterested members of the bar, schooled in appellate practice.

Defending the Malicious Prosecution claim

The complex tort of malicious prosecution is frequently threatened yet rarely fully understood.  The elements of the claim are that a prior action  (1) was commenced by or at the direction of the defendant and was pursued to a legal termination in his, plaintiff’s favor;  (2) was brought without probable cause: and (3) was initiated with malice.” (Brennan v. Tremco Inc. (2001) 25 Cal.4th 310, 313).  Defending against a malicious prosecution claim obviously will entail negating the elements of the tort.  The prior plaintiff can defend the case by establishing probable cause to file the prior action or by arguing that the manner of the prior action’s termination did not establish the prior defendant’s freedom from liability.  In addition to contesting the elements of the tort, at least three other defenses may also come into play: Advice of Counsel, Statute of Limitations and Unclean Hands.

No Harm, No Foul: Court of Appeal lets UCLA off the hook for $16 million in lost medical data case

A computer hard drive containing private medical information for 16,000 patients at UCLA was stolen. One of the patients filed a class action lawsuit seeking $1,000 per patient ($16 million total) in statutory damages against the UC Regents. Although the plaintiff pled that the UC system negligent stored the patient data the plaintiff did not plead that any third party had actually viewed the confidential data. The question posed to the trial court and again on appeal was whether a claim for statutory damages could proceed absent pleading and proof of actual disclosure. The trial court ruled for the plaintiff and overruled the UC Regents’ demurrer.

The Court of Appeal reversed and granted a writ petition by the UC Regents today. In an opinion authored by Presiding Justice Dennis Perluss Division Seven of the Second District Court of Appeal, ruled that an action for statutory damages under California’s Confidentiality of Medical Information Act requires proof of actual disclosure of the data to a third party. Mere negligent storage of the information alone is insufficient. You can read the decision in Regents of University of California v. Superior Court (Platter) (Oct. 15, 2013 B249148) here.

Given that the thief in this case and similar cases is not likely ever to admit to viewing the data, it is difficult to imagine a scenario where stolen data will result in statutory damages in the future unless the thief is caught and confesses.